CLEMENTS, adm'or VS. ESLAVA, 4 Port. 502

HOPKINS,- C. J. — -There was a general count in the declaration' in this case/ for money, as the price' of two mules. Upon the trial, the proof showed that the price was payable in lumber, to be delivered in Mobile. There was no' proof of the delivery, or of an offer to deliver the lumber. It was proved that a reasonable time for the delivery had elapsed before the commencement of the action. Upon this evidence, the Court below refused to instruct, the jury, that there was a variance between the contract proved and the one set out in the declaration, and that the plaintiff in error was not liable.

The Court charged the jury, that if the contract proved, did vary from the one set out in'the declaration, the objection ought to have been taken when the evidence was offered — and that the defendant in error was entitled to recover on the proof submitted, (if they believed it,) the price, which it was agreed should be paid for the mules. For the refusal of the Court to give the instruction that has been mentioned, and for the charge which was given, the plaintiff in error excepted.

Whether the facts proved, are evidence of the cause of action, set out in a declaration, or of a different cau.se of action, upon which there can be no recovery except on a special count, is a legal question, that a Court ought to decide. If the proofs do not support the cause of action contained in a declaration, or tend to do so, they are irrelevant, and might be excluded from a jury, on motion to the Court. Where the cause of action proved, is one for which there might be a recovery on a proper special count, there cannot he a recovery upon a general count.

In such a case, .the defendant to the action has his election, either to move the Court to exclude the proof of the special agreement, from the jury, or to instruct them that such evidence proves a different contract from, the one set out in the general count, and does not sustain it. In this case, the contract set out in the declaration, was to pay the price of the mules in money, and the breach alleged, was the failure to pay the money.

Proof that the plaintiff in error had agreed to pay the price in lumbor, which he had not delivered, was not evidence of the cause of action contained in the declaration, or of the breach assigned, but it was evidence of a different agreement, on which the defend-an^ in error might sustain a proper special count. The Court erred in refusing to instruct, as the plaintiff in error requested, and in giving the charge, which was excepted to, and has been assignedbere for error. The judgment is reversed, and the cause remanded. GOLDTHWAITE, J. not sitting. 34^sta^ ^_4 Bibb, 349.